Terms for Companies

Terms of Service (Companies)

These Terms of Service (these “Terms”) are a contract between the business entity you represent, on the one hand (“you”), and Via Ventures on the other hand (collectively, “Via”, “we” or “us”). You must read, agree with and accept all of the terms and conditions contained in these Terms in order to use the website located at www.via.ventures and related software and services (collectively, the “Via Platform Services”). Via may revise these Terms at any time. If any such amendment results in a material change to these Terms, as determined by Via in its sole discretion, Via will inform you of such changes via a notice on www.via.ventures or by sending you an email to the address you have registered with us. Continued use of the Via Platform Services after the effective date of any revisions to these Terms constitutes your acceptance of the revised Terms.

YOU UNDERSTAND THAT BY SIGNING UP FOR AND USING THE Via PLATFORM SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE Via PLATFORM SERVICES. BY AGREEING TO THESE TERMS ON BEHALF OF A LEGAL ENTITY: (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND ANY REPRESENTATIVES IT ALLOWS TO ACCESS THE Via PLATFORM SERVICES OR TO PROVIDE SERVICES VIA THE Via PLATFORM SERVICES TO THESE TERMS; (B) SUCH ENTITY IS RESPONSIBLE FOR ANY BREACH OF THESE TERMS BY ANY OF ITS REPRESENTATIVES; AND (C) “YOU” AND “YOUR” AS USED HEREIN WILL REFER AND APPLY TO THAT ENTITY AND THE PERSONS THAT ACCESS THE Via PLATFORM SERVICES ON ITS BEHALF.

1. THE Via PLATFORM SERVICES

1.1 Overview

The Via Platform Services provide a venue for you (the “Client”) to review and obtain professional services (“Services”) from independent Fellows (“Fellows”) for one or more projects (“Projects”). Under these Terms, Via provides services to you in your capacity as a Client, including operating and providing the Via Platform Services, curating Fellows and Project bids, enabling the formation of contracts between Clients and Fellows, and functioning as the payment processor for Clients and Fellows. As a Client, you post Projects and invite Fellows to submit a bid. Fellows, in turn, post their professional profile(s) and bid on Projects. If you accept a Fellow’s bid, you may then draft and negotiate a contract, statement of work (SOW), consulting agreement, or other service or project agreement directly with such Fellow (“Service Contract”), though any such Service Contract you enter into with a Fellow must contain the required terms as further described in Section 1.5 below. Via reserves the right, either upon your request or in certain cases and with respect to certain Projects, to select the set of bids to forward to you for review.

1.2 Eligibility

The Via Platform Services are available only to legal entities that are capable of forming legally binding contracts under applicable law. In order to create an account, you must provide us with your business name and contact information, including the name and contact information of a representative authorized to act on your entity’s behalf. In addition, by creating an account, you represent and warrant that your entity is not (a) a citizen of or doing business in a country where the use of or participation in the Via Platform Services is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen of, or doing business in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) associated or doing business with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation. In addition, you confirm that you are not prohibited or limited in any way from participating as a Client on the Via Platform Services by any contract (e.g., employment, consulting, confidentiality, or non-disclosure agreements) or any similar policies or obligations that limit your conduct or business in any way. Further, to the extent your right to receive Services is limited in any way, you confirm that you have obtained all necessary consents or waivers to receive Services as a Client on the Via Platform Services. Notwithstanding the foregoing, Via may determine your eligibility to create an account on the Via Platform Services in its sole discretion.

1.3 Independent Fellow Status

As a Client, you acknowledge and agree that your relationship to Via is that of an independent Fellow and customer receiving professional services, and that (a) you have no authority to act on behalf of Via; (b) Via does not, in any way, supervise, direct, or control the performance of the Services by Fellows; (c) Via is not a party to any contract you may enter into with Fellows and will not have any liability or obligations whatsoever under any such contracts; and (d) Via makes no representations as to the reliability, capability, or qualifications of any Fellows or the quality, security or legality of any services provided by such Fellows, and Via disclaims any and all liability relating thereto. Via does not direct, has no control over, makes no representations, and does not guarantee the quality, safety or legality of services advertised, the truth or accuracy of listings, the qualifications, background, or identities of Fellows, the ability of Fellows to deliver services, or that a Fellow can or will actually complete a transaction. WITHOUT LIMITING THE FOREGOING, Via MAKES NO WARRANTIES, EXPRESS OR IMPLIED REGARDING OR RELATING TO THE FellowS, THE Fellow SERVICES OR THE SERVICE CONTRACTS.

1.4 Service Contract Required Terms

Unless otherwise agreed to in a writing signed by Via, each Service Contract must contain terms and conditions substantially similar to and at least as protective of Via as the following, provided that such terms and conditions do not constitute legal advice from Via, and you and your Fellows should consult independent counsel in drafting and negotiating any Service Contracts: Customer Payments and Billing. Client will pay Via Technologies, Inc. (“Via”) the fees for the Project in accordance with its agreement with Via (i.e., the Via Terms of Service).Third Party Beneficiary. Client and Fellow understand and agree that Via is an intended third party beneficiary of each Service Contract and that Via has the right to enforce its rights and obligations under the Service Contract on its own behalf. Once you have executed a Service Contract with a Fellow, you must upload a copy (redacted if necessary to protect any particularly sensitive information) to your Workspace for the applicable Project so that Via can verify your compliance with this requirement.

1.5 Exclusivity

For a period of twelve (12) months from the later of (i) the time Customer first identifies a Fellow through the Via Platform Services or (ii) the time a Fellow completes its last Project with a Customer (“Exclusivity Period”), Customer will use the Via Platform Services as its exclusive method to receive all Fellow Services and make all payments, directly or indirectly, with that Fellow. During the Exclusivity Period, Customer shall not make complete or partial payments to Fellows for Fellow Services outside of the Via Platform Services, or otherwise circumvent Via’s role as payment processor or the Via Platform Services’ payment methods, and any violation of the foregoing restrictions is a material breach of this Agreement. By way of illustration and not in limitation of the foregoing, within the Exclusivity Period Customer will not: (a) accept proposals from, receive services from, or make payments to any Fellows except via the Via Platform Services; or (b) pay or report on the Via Platform Services a payment amount lower than that actually agreed between Customer and a Fellow through the Via Platform Services. CUSTOMER WILL NOTIFY Via IMMEDIATELY IF A Fellow SUGGESTS MAKING PAYMENTS OUTSIDE OF THE Via PLATFORM SERVICES WITHIN THE EXCLUSIVITY PERIOD. If during the Exclusivity Period, you offer traditional employment to a Fellow, you agree to pay Via a fee of 20 percent of the annualized Base Salary payable to said Fellow (the “Employment Fee”). Base Salary means the annualized base salary and does not include any percentage of signing, discretionary or other possible bonuses, moving expenses, tuition reimbursement or any other compensation or type of allowance (the “Base Salary”). You will pay Via the Employment Fee upon completion of thirty (30) days of employment of the Fellow. In the event the Fellow terminates employment with you, whether voluntarily or involuntarily, within thirty (30) days of employment, no Employment Fee will be owed. Upon expiration of Exclusivity Period, you are free to directly deal with the applicable Fellow outside of the Via Platform Services and independently from these Terms.

1.6 No Background Checks

Via is not required to and does not verify any information given to Via by Fellows, nor does Via perform background checks on Fellows. Via may provide information about a Fellow to you, such as a strength or risk score, geographical location or third party feedback, background check or verification of identity or credentials. However, such information is based solely on data that Fellow submits. Via provides such information solely for the convenience of its users and is not an introduction, endorsement or recommendation by Via.

1.7 Third Party Websites

The Via Platform Services may include links to third party websites. Via has no control over, is not responsible for and does not endorse any such sites, and Via will have no liability for any damages or losses you incur by visiting or using such third party websites.

1.8 Privacy

By accessing and using the Via Platform Services, you agree to abide by the Via Privacy Policy ("Privacy Policy"), which is incorporated herein by reference.

1.9 Code of Conduct

By accessing and using the Via Platform Services, you agree to abide by the Via Code of Conduct (“Code of Conduct”), which is incorporated herein by reference.

2. LICENSE AND RESTRICTIONS; OWNERSHIP

2.1 License Grant

Subject to your compliance with these Terms, Via hereby grants you a personal, non-exclusive, non-transferable, revocable, limited license (without the right to sublicense) to access and use the Via Platform Services for your internal business purposes only, and subject to the limitations set forth below. Via reserves any and all rights not expressly granted to you pursuant to these Terms. The limited rights granted to you to access and use the Via Platform Services comprise a limited license and do not constitute the sale of any software program or other intellectual property.

2.2 Restrictions

You agree that:you will not use the Via Platform Services if you are not fully able and legally competent to agree to these Terms;you will only use the Via Platform Services in full compliance with all applicable laws and these Terms; andyou will not use the Via Platform Services for fraudulent purposes or to engage in any offensive, indecent or objectionable conduct. Further, except as specifically permitted herein or approved in advance in writing by Via, you agree that you will not directly or indirectly:distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Via Platform Services in any unauthorized manner;copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Via Platform Services or any part thereof in any form or manner or by any means;harvest or scrape any content or data from the Via Platform Services;remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Via Platform Services;decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Via Platform Services or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);circumvent any functionality that controls access to or otherwise protects the Via Platform Services; orpermit any third party to engage in any of the foregoing. Any attempt to do any of the foregoing is a material breach of these Terms and a violation of the rights of Via and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.

2.3 Via Platform Services Ownership

The Via Platform Services’ “look and feel” (e.g., text, graphics, images, logos), proprietary content and software code, information and other materials are protected under intellectual property laws. You acknowledge and agree that Via and/or its licensors own all right, title and interest in and to the Via Platform Services (including all intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Any and all improvements, updates, modifications or enhancements, whether made, created or developed by Via or otherwise relating to the Via Platform Services (collectively, “Revisions”), are and will remain the property of Via. All Revisions become the sole and exclusive property of Via.

2.4 Feedback

Any and all suggestions for correction, change, enhancement, improvement and modification to the Via Platform Services and other feedback, information and reports you provide to Via (collectively “Feedback”) are and will remain the property of Via. Via may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to Customer and without retention by Customer of any proprietary or other right or claim. You hereby assigns to Via any and all right, title and interest that you may have in and to any and all Feedback.

3. CONTENT POLICY

3.1 Your Content

You represent and warrant that you own or have a valid license to all content or other materials uploaded, posted, published or displayed through the Via Platform Services (collectively, (collectively, “Content”). Subject to Via’s Privacy Policy, you hereby grant Via and its affiliates a worldwide, non-exclusive, royalty free, fully paid, transferable, sub-licensable, perpetual, and irrevocable license to copy, modify, display, perform, distribute, create derivative works of and otherwise use your de-identified and aggregated Content in connection with the operation and promotion of the Via Platform Services.

3.2 Workspace and Work Product

During the course of your Projects, Via will provide you storage space on the Via Platform Services (“Workspace”) for the exchange of documents and other information related to your Projects between you and the applicable Fellow. Via reserves the right to delete your Workspace and all data therein thirty (30) days after the end of the associated Project.

3.3 Disclosure of Your Content

You acknowledge and agree that Via may preserve and/or disclose your Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any of your Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Via, its affiliates, officers, employees, representatives and agents, as well as Via Platform Services users and the general public.

3.4 Prohibited Content

You are solely responsible for all of your Content, and agree not to upload any Content prohibited by applicable law or the restrictions in this Section. Via reserves the right to investigate and take appropriate legal action against any Fellows who violates this Section. Specifically, you represent and warrant that none of your Content: (a) constitutes protected health information under the Health Information Portability and Accountability Act; (b) infringes any intellectual property, proprietary, contractual or privacy rights of any party; (c) constitutes material, non-public information about any Via and/or constitutes information the disclosure of which would be in violation of securities laws; (d) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “contests”, “sweepstakes”, or any other form of solicitation; (f) is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, or otherwise objectionable; or (g) in the sole judgment of Via, is objectionable or which restricts or inhibits any other person from using or enjoying the Via Platform Services, or which may expose Via or its users to any harm or liability of any kind. Via has the right, but not the obligation, to monitor your use of the Via Platform Services and Content to determine your compliance with these Terms.

4. FEES AND PAYMENT

4.1 Fees

Via is free to join, and there are no charges to post Projects or review Fellow profiles. Instead, Via collects fees for each Project that is completed via the Via Platform Services. All fees are non-cancelable and non-refundable. If you have further questions about Via's fees, please contact us at info@via.ventures.

4.2 Payment Methods

Via functions as the payment processor for amounts you pay to Fellows for Services on the Via Platform Services. You agree to pay Via any fees you incur on the Via Platform Services, and hereby authorizes Via to charge you in the form of payment mutually agreed to between you and Via for such fees. If you elect to pay by credit card, you authorize the Via to (a) run, or have run, credit card authorizations on all credit cards provided by you; (b) store your credit card details as your method of payment for Services; and (c) charge your credit card (or any other form of payment authorized by the Via or mutually agreed to between you and the Via) in payment of any fees you incur on the Via Platform Services. If Via invoices you, fees will be invoiced at Project launch or milestone launch as applicable; expenses will be invoiced as incurred. All fees are due net fifteen (15) days from the invoice date and shall be in United States dollars. Any payment not received from you by the due date may accrue, at Via’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If you require that an invoice be submitted against a purchase order before payment can be made, you will be responsible for issuing such purchase order to Via in a timely fashion and your failure to do so will not affect your obligation to pay all fees in accordance with these Terms. Via’s fees do not include any taxes of any nature. You are responsible for paying all taxes related to the Via Platform Services, excluding only taxes based on Via’s income, property or employees.

4.3 Books and Records

Each party will keep complete and accurate books and records sufficient to verify compliance or non-compliance with these Terms and the provisions of any Service Contract. Each party will, upon at least ten business days prior written request by the other party (a “Review Request”), make available to the other party and its auditors such books and records and provide reasonable cooperation to the extent necessary to verify the accuracy of the amounts owed and charged pursuant to these Terms. Such Review Requests may not be issued more frequently than once every twelve (12) months.

5. CONFIDENTIALITY

5.1 Definition of Confidential Information

As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential or is identified in writing as confidential or proprietary within fifteen (15) days of disclosure to the Receiving Party or that a reasonable person would deem confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Confidential Information shall include, but not be limited to: the pricing and other terms reflected in all Service Contracts, Content and the Disclosing Party’s business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that a Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

5.2 Confidentiality and Non-Use

Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, agents and/or representatives who have a need to know such Confidential Information and who are bound to protect such Confidential Information as required hereby, or to legal, financial or other professional advisors who are providing professional services to the Receiving Party subject to obligations of confidentiality. In addition, without the Disclosing Party’s written permission, the Receiving Party shall not use any Confidential Information of the Disclosing Party other than in connection with fulfilling the obligations or exercising the rights of the Receiving Party under these Terms (including, without limitation, as may be necessary to support or defend a claim arising under these Terms).

5.3 Compelled Disclosure

If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure. The Receiving Party will cooperate reasonably with the Disclosing Party in any effort the Disclosing Party undertakes to obtain a protective order and, if disclosure is nonetheless required, will furnish only such Confidential Information as is legally required to be disclosed.

5.4 Remedies

If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

5.5 Publicity

During the term of this Agreement, Via may publicly refer to Client as a customer of Via and may use Client’s name and logos alongside the names and/or logos of other Via Clients on Via’s website, in customer lists, pitch proposals, investor presentations and sales presentations.

6. WARRANTY DISCLAIMER

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Via MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, Via PLATFORM SERVICES OR ANY ACTIVITIES OR ITEMS RELATED TO THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Via DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

IN NO EVENT WILL Via BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS OR LOSS OF DATA, PRODUCTION OR PROFIT. THE TOTAL AGGREGATE LIABILITY OF Via TO YOU FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR USE YOUR OF THE Via PLATFORM SERVICES WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU TO Via DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO LIABILITY. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF Via IS ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

8. INDEMNIFICATION

You agree to indemnify and hold harmless the Via and its affiliates, officers, employees, representatives and agents (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to: (a) your use of the Via Platform Services; (b) your Content; and (c) your violation of these Terms.

9. TERMINATION

9.1 Termination

Subject to your obligation to pay for Services for which you have received, you have the right to cancel your account at any time upon notice to Via, and Via has the unlimited right to terminate or limit your account and/or access to the Via Platform Services at any time and for any reason, including, without limitation, for violation of these Terms and/or the Code of Conduct. For the avoidance of doubt, canceling your account does not relieve you of your obligations with respect to the Exclusivity Period set forth in Section 1.6.

10. DISPUTE RESOLUTION

10.1 Informal Process First

You agree that in the event of any dispute between you and Via, you will first contact us and make a good faith sustained effort to resolve the dispute amicably and efficiently.

10.2 Individual Basis; Jury Trial Waiver

To the fullest extent permitted by applicable law, you and Via each agree that any proceeding to resolve a Claim will be conducted only in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, consolidated, multiple plaintiff or representative action (“Class Action”). If for any reason a Claim proceeds in court rather than in arbitration, you and Via each waive any right to a jury trial. You and Via expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

10.3 Limitation Period

In no event will any Claim, or any other action or proceeding by you (including arbitration under this Section 10) be instituted more than one (1) year after the cause of action arose.

10.4 Jurisdiction

You and Via each agree to the exclusive jurisdiction of the Federal and State courts located in Boston, Massachusetts, and you and Via each agree to submit to the exercise of personal jurisdiction of such courts for the purposes of litigating any applicable dispute or claim.

11. GENERAL

11.1 Assignability

You may not assign these Terms or any of your rights or obligations hereunder without Via’s prior written consent. Via may freely assign these Terms. Any attempted assignment or transfer in violation of this Section 11.1 will be null and void. Subject to the foregoing restrictions, these Terms will inure to the benefit of the successors and permitted assigns of the parties.

11.2 Entire Agreement

These Terms set forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.

11.3 Governing Law

These Terms and any controversy, dispute or claim arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions.

11.4 Notices; Consent to Electronic Notice

You consent to the use of electronic means to deliver any notices pursuant to these Terms. Notices will be given: (a) by Via via email (in each case to the email address that you provide when registering your account); (b) a reasonably prominent posting on the Via Platform Services; or (c) by you via email to info@via.ventures.

11.5 No Waiver

The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.

11.6 Severability

If and to the extent any provision of these Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties.